UNITED STATES, Plff. in Err.,

V.

for his own account. The mere preference right obtained as the result of taking the steps enumerated in §§ 2348 and 2349, Rev. CHARLES E. HERR and George C. Frank

Stat., including the filing of the declaratory statement, is, as described in § 2348, simply "a preference right of entry, under the preceding section, of the mine so opened and improved." Turning to § 2347, the preceding section referred to, it will be seen that the entry therein provided for is the cash entry made by applying to purchase

lin.

(See S. C. Reporter's ed. 404, 405.)

This case is governed by the decisions in United States v. Keitel, ante, 230, and United States v. Forrester ante, 245.

I

[No. 291.]

December 14, 1908.

IN ERROR to the District Court of the United States for the District of Colorado to review a judgment quashing an indictment for conspiring illegally to obtain title to coal lands of the United States. Reversed and remanded for further proceedings.

Solicitor General Hoyt and Attorney General Bonaparte argued the cause, and, with Mr. Edwin W. Lawrence, filed a brief for plaintiff in error. For their contentions, see their briefs as reported in United States v. Keitel, ante, 230.

Mr. B. W. Ritter argued the cause, and, with Mr. N. C. Miller, filed a brief for defendants in error.

the land, and cotemporaneously therewith Argued October 22, 23, 26, 1908. Decided making payment for the same, which entry, as we have decided in the Keitel Case, excludes the right of a qualified person to make the entry in his own name with the money and for the benefit of a disqualified person. When it is considered that the pref. erence which the statute allows is but a right within the time limited in the statute to make the entry authorized by § 2347, it cannot be held, without destroying that section, that the obtaining of such mere right of perference authorized the making, not only 404]of an entry which the statute permitted, but as well one which the statute for bade. All the argument which seeks to demonstrate that the provision which gives the right to be preferred in making an authorized entry endows with the authority to make an illegal because prohibited entry rests upon a mere misconception of the nature and character of the right of preference for which the statute provides. The argument assumes that the right of preference is, in and of itself, the equivalent of an entry, not controlled by the prohibition which the statute expresses, when in truth and in fact the right of preference is merely a privilege given to make the statutory entry of a particular tract of coal land in preference to others. And the misconceptions upon which the argument rests concerning the nature and character of the preference right for which the coal-land statutes provide, when duly appreciated, at once demonstrate the irrelevancy of previous rulings of this court concerning the right of an entryman after entry, or after the doing of acts made by the statute equivalent to an entry, to dispose of the land embraced with

in the entry.

It follows from the construction which we have given the statutes in the opinion delivered in the Keitel Case, No. 286, just decided, and for the reasons here stated, that the court below erred in sustaining the demurrer to the indictment.

Reversed and remanded for further proceedings in conformity to this opinion.

Mr. Justice White delivered the opinion of the court:

The court below sustained a demurrer to the indictment in this case, for the reasons which caused it to quash the first count of the indictment in the case of United States v. Keitel [211 U. S. 370, ante, 230, 29 Sup. Ct. Rep. 123].

The indictment alleged a conspiracy to defraud the United States of coal lands, in violation of § 5440, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3676). The conspiracy charged was, speaking in a broad sense, of the same general nature as that set forth in the first count of the indictment in the Keitel Case. In the argument at bar, however, counsel dif

fer as to the correct construction of the indictment here under consideration, the United States contending that the conspiracy to which the indictment related concerned

entries based upon preferential rights, while, on the part of the defendants in error, it is insisted that the conspiracy related to only cash entries. In view, however, of our ruling in the Keitel Case, No. 286, and the reasoning by which the decision in that case was held to be controlling in United States v. Forrester, No. 287, just decided [211 U. S. 399, ante, 245, 29 Sup. Ct. Rep. 132], the contentions referred to are irrelevant on this writ of error.

As it results from the opinions in the cases just referred to that the court below erred in sustaining the demurrer to the indictment, its order so doing must be reversed.

Reversed and remanded for further proceedings in conformity to this opinion.

406] *UNITED STATES, Plff. in Err.,

V.

CHARLES E. HERR.

(See S. C. Reporter's ed. 406, 407.)

This case is governed by the decision in United States v. Keitel, ante, 230.

[No. 292.]

Argued October 22, 23, 26, 1908. Decided
December 14, 1908.

IN

IN ERROR to the District Court of the United States for the District of Colorado to review a judgment quashing an indictment for a conspiracy illegally to obtain coal lands from the United States. Affirmed.

Solicitor General Hoyt and Attorney General Bonaparte argued the cause, and, with Mr. Edwin W. Lawrence, filed a brief for plaintiff in error. For their contentions see their brief as reported in United States v. Keitel, ante, 230.

Mr. N. C. Miller argued the cause, and, with Messrs. B. W. Ritter and Edgar Buchanan, filed a brief for defendant in error; It is not enough that a question of construction of the statute was presented to the court below. It must, we think, appear affirmatively that such question was not only presented, but that its decision was necessary to the determination of the cause, and that it was the actual basis of the decision, or that the judgment rendered could not have been given without deciding it. In other words, such must have been the controlling question involved.

Giles v. Teasley, 193 U. S. 146, 167, 48 L. ed. 655, 661, 24 Sup. Ct. Rep. 359; Sloan v. United States, 193 U. S. 614, 620, 48 L. ed. 814, 817, 24 Sup. Ct. Rep. 570; Caro v. Davidson, 197 U. S. 197-200, 49 L. ed. 723, 724, 25 Sup. Ct. Rep. 428; Empire State-Idaho Min. & Developing Co. V. Hanley, 205 U. S. 225, 233, 51 L. ed. 779, 782, 27 Sup. Ct. Rep. 476; United States ex rel. Taylor v. Taft, 203 U. S. 461, 51 L. ed. 269, 27 Sup. Ct. Rep. 148; Leathe v. Thomas, 207 U. S. 93, 52 L. ed. 118, 28 Sup. Ct. Rep. 30; Arkansas Southern R. Co. v. German Nat. Bank, 207 U. S. 270, 52 L. ed. 201, 28 Sup. Ct. Rep. 78.

"Interpretation" has been said to be the "finding of the true sense of the special form of words used;" and "construction" to be "the drawing of conclusions respecting subjects that lie beyond the direct expression of the text."

Bloomer v. Todd, 3 Wash. Terr. 612, 1 L.R.A. 111, 19 Pac. 135; Morris Aqueduct v. Jones, 36 N. J. L. 206; State ex rel. Hastings v. Smith, 35 Neb. 22, 16 L.R.A. 791, 52 N. W. 700; People ex rel. Twentythird Street R. Co. v. Tax Comrs. 95 N. Y. 559; Deane v. State, 159 Ind. 316, 64 N. E. 916; Terre Haute & L. R. Co. v. Erdel, 158 Ind. 347, 62 N. E. 706.

There are no common-law offenses against the United States, and every indictment must, therefore, be founded upon a statute.

Todd v. United States, 158 U. S. 278, 39 L. ed. 982, 15 Sup. Ct. Rep. 889; United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764.

There is no room for "construction"-in its true sense-when the statute is plain and unambiguous.

United States v. Wiltberger, 5 Wheat. 76, 96, 5 L. ed. 37, 43; Thornley v. United States, 113 U. S. 310, 28 L. ed. 999, 8 Sup. Ct. Rep. 491; St. Paul, M. & M. R. Co. v. Phelps, 137 U. S. 528, 34 L. ed. 767, 11 Sup. Ct. Rep. 168; United States v. Alger, 152 U. S. 384, 38 L. ed. 488, 14 Sup. Ct. Rep. 635.

In cases of doubt, the title and subject of the act may always be resorted to to determine the meaning of the body of the act.

Myer v. Western Car Co. 102 U. S. 1, 26 L. ed. 59; Church of the Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511.

Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556-576, 40 L. ed. 536-541, 16 Sup. Ct. Rep. 389; Harrison v. Morton, 171 U. S. 38-47, 43 L. ed. 63-66, 18 Sup. Ct. Rep. 742; Eustis v. Bolles, 150 U. S. 361, 366, 37 L. ed. 1111, 1112, 14 Sup. Ct. Rep. 131; Carey v. Houston & T. C. R. Co. 150 U. S. The original statute applied only to pen170, 181, 37 L. ed. 1041, 1044, 14 Sup. Ct. sion matters, and was further restricted to Rep. 63; Cameron v. United States, 146 U. the proceedings in these matters while pendS. 533, 36 L. ed. 1077, 13 Sup. Ct. Rep. 184; | ing before, and within the jurisdiction of, Shoshone Min. Co. v. Rutter, 177 U. S. the Commissioner of Pensions himself. It 505-509, 44 L. ed. 864-866, 20 Sup. Ct. Rep. did not impose a penalty upon the person 726; Ferry v. King County, 141 U. S. 668, who himself prepared a false affidavit, but 673, 35 L. ed. 895, 898, 12 Sup. Ct. Rep. 128; only upon the one who procured it to be

done; nor did it cover, under the first, State v. Goodrich, 84 Wis. 359, 54 N. W. clause, any paper other than an affidavit; 577; Shirk v. People, 121 Ill. 61, 11 N. E. nor did it cover a case where, on appeal from the Commissioner of Pensions, a false affidavit was procured to be presented to the Secretary of the Interior.

United States v. Kuentsler, 74 Fed. 220; Edgington v. United States, 164 U. S. 361, 41 L. ed. 467, 17 Sup. Ct. Rep. 72.

The amendment of 1898 is plainly of a very special character, and broadens the original act only to a very limited extent. Pooler v. United States, 62 C. C. A. 307, 127 Fed. 513.

When we remember that the old statute covered only certain offenses in pension matters, and applies only to a restricted class of persons, at particular stages only of the proceedings, it is not unreasonable to suppose, unless the language of the amend ment necessarily repels the presumption, that Congress intended only to extend the provisions of the section to persons who made, as well as those who procured, any material false paper in a pension matter at any stage of the proceeding.

Brewer v. Blougher, 14 Pet. 178, 10 L. ed. 408; Petri v. Commercial Nat. Bank, 142 U. S. 644, 35 L. ed. 1144, 12 Sup. Ct. Rep. 325; Cherokee Intermarriage Cases, 203 U. S. 76, 89, 51 L. ed. 96, 102, 27 Sup. Ct. Rep. 29; McKee v. United States, 164 U. S. 287, 41 L. ed. 437, 17 Sup. Ct. Rep. 92.

When a particular class is spoken of and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with

such class.

888; State v. Fontenot, 112 La. 628, 36 So. 634; People v. New York & M. B. R. Co. 84 N. Y. 569; Bevitt v. Crandall, 19 Wis. 582; 26 Am. & Eng. Enc. Law, 2d ed. p. 610.

Mr. Justice White delivered the opinion of the court:

The indictment in this case contains two counts, each purporting to charge the commission of an offense in violation of Rev. Stat., § 4746 (U. S. Comp. Stat. 1901, p. 3279), as amended.

The substantial charge in each count is that the defendant unlawfully procured a named person, in connection with a preferential entry of coal lands, to make and present to the Secretary of the Interior, by and through the register and receiver of the United States land office at Durango, Colorado, an affidavit at purchase, which was false and fraudulent in specified particulars. A demurrer to the indictment was filed and the validity of each count was assailed on many grounds. In disposing of the demurrer it was assumed by the district *judge[407 as conceded by the government, that the affidavit was not, in fact, presented to the Secretary of the Interior, but was simply filed in the local land office.

The demurrer was sustained "for reasons given on consideration of the second count in the indictment" in the case against F. W. Keitel et al. The case at bar comes within the principles applied by us in No. 286, just decided [211 U. S. 370, ante, 230, 29 Sup. Ct. Rep. 123], where, in passing upon the rulings made below in the Keitel Case, it was held that the second count of the indictment there considered, when the statute was correctly construed, stated no offense. The judgment below, which involved a similar ruling, is therefore affirmed.

Broom, Legal Maxims, 625; Sutherland, Stat. Constr. § 268; Sedgw. Stat. & Const. Law, p. 361. Bishop, Statutory Crimes, p. 261, § 245; Sarlls v. United States, 152 U. S. 570, 38 L. ed. 556, 14 Sup. Ct. Rep. 720; United States v. Irwin, 5 McLean, 178, Fed. Cas. No. 15,445; Caldwell's Case (United States v. Caldwell) 19 Wall. 264, 22 L. ed. 114; United States v. Beach, 71 Fed. 160; State v. Bryant, 90 Mo. 534, 2 S. INTERSTATE COMMERCE COMMISSION.

W. 836; State v. Schuchmann, 133 Mo. 111,

EDWARD H. HARRIMAN, Appt.,

V.

(No. 315.)

OTTO H. KAHN, Appt.,

V.

(No. 316.)

Colo. 248, 11 Pac. 103; Hover v. People, 17 INTERSTATE COMMERCE COMMISSION.
Colo. App. 375, 68 Pac. 679; Morse v. Mor-
rison, 16 Colo. App. 449, 66 Pac. 169; Troy
Laundry & Machinery Co. v. Denver, 11 INTERSTATE COMMERCE COMMISSION,

Colo. App. 368, 53 Pac. 256; Brooks v. Cook, 44 Mich. 617, 38 Am. Rep. 282, 7 N. W. 216; Moore v. Settle, 82 Ky. 187, 56 Am. Rep. 889; State v. Sumner, 10 Vt. 587, 33 Am. Dec. 219; Edson v. Hayden, 20 Wis. 683; American Manganese Co. v. Virginia Manganese Co. 91 Va. 272, 21 S. E. 466;

Appt.,

V.

EDWARD H. HARRIMAN. (No. 317.) (See S. C. Reporter's ed. 407-429.) Interstate Commerce Commission · power to compel testimony. Witnesses cannot be required to testify

and dealings of state corporations and their officers not in that relation.

V.

before the Interstate Commerce Commission except in connection with complaints for violation of the interstate commerce act or with the investigation by the Commission 684; Hale v. Henkel, 201 U. S. 75, 50 L. ed. Angell & A. Priv. Corp. 11th ed. p. 19, § of subjects that might have been made the 665, 26 Sup. Ct. Rep. 370; Gibbons object of complaint, these being the only matters contemplated by the provision of Ogden, 9 Wheat. 211, 6 L. ed. 73; Galves§ 12 of that act, giving the Commission ton, H. & S. A. R. Co. v. Texas, 210 U. S. power to require testimony "for the pur-225, 52 L. ed. 1036, 28 Sup. Ct. Rep. 638; poses of this act," which power cannot be exercised by the Commission in performing its duty under that section to keep itself informed as to the manner and method in which the business of common carriers is conducted, nor in connection with the enforcement of the requirement of § 20 respecting reports by carriers, nor to aid the Commission in recommending, pursuant to § 21, additional legislation to Congress. [For other cases, see Interstate Commerce Commission, in Digest Sup. Ct. 1908.]

[Nos. 315, 316, 317.]

Baltimore & O. R. Co. v. Maryland, 21 Wall. 472, 22 L. ed. 684; Louisville & N. R. Co. v. Kentucky, 161 U. S. 677, 701, 40 L. ed. 849, 859, 16 Sup. Ct. Rep. 714; Ashley v. Ryan, 153 U. S. 436, 38 L. ed. 773, 4 Inters. Com. Rep. 664, 14 Sup. Ct. Rep. 865; Mobile, J. & K. C. R. Co. v. Mississippi, 210 U. S. 187, 202, 52 L. ed. 1016, 1023, 28 Sup. Ct. Rep. 650; New York ex rel. Pennsylvania R. Co. v. Knight, 192 U. S. 21, 48 L. ed. 325, 24 Sup. Ct. Rep. 202; United States v. E. C. Knight Co. 156 U. S. 1, 12, 13, 39 L. ed. 325, 329, 15 Sup.

Argued November 3, 4, 1908. Decided De- Ct. Rep. 249; Hopkins v. United States,

The appellant Harriman was not bound to answer the questions in dispute if they did not relate to any particular matter under investigation, or to any matter which the Commission is entitled, under the Constitution or laws, to investigate.

V.

Interstate Commerce Commission Brimson, 154 U. S. 447, 479, 38 L. ed. 1047, 1058, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125.

The subject-matter of the questions propounded is not interstate commerce, nor so related to interstate commerce as to be subject to regulation by Congress under the commerce clause.

(1) The power of Congress under the commerce clause is limited to matters in direct relation to interstate commerce, and does not extend to the acts, transactions, 254

171 U. S. 578, 43 L. ed. 290, 19 Sup. Ct. Rep. 40; Adair v. United States, 208 U. S. 161, 52 L. ed. 436, 28 Sup. Ct. Rep. 277; Mobile County v. Kimball, 102 U. S. 691, 702, 26 L. ed. 238, 241; Field v. Barber Asphalt Paving Co. 194 U. S. 618, 623, 48 L. ed. 1142, 1154, 24 Sup. Ct. Rep. 784; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 229, 44 L. ed. 136, 143, 20 Sup. Ct. Rep. 96; 17 Harvard Law Rev. 536, 537; Northern Securities Co. v. United States, 193 U. S. 197, 348, 349, 48 L. ed. 679, 704, 705, 24 Sup. Ct. Rep. 436.

(2) The subject-matter of the questions propounded was not interstate commerce nor directly related to it.

The questions have no relation to the reasonableness of the rates of the Union Pacific.

A state corporation does not, by engaging in interstate commerce, subject all its affairs to the regulation and control of Congress.

Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U. S. 463, 52 L. ed. 297, 28 Sup. Ct. Rep. 141.

Capital is not an "instrumentality" of interstate commerce in the sense that Congress may regulate the financial affairs of a state corporation and inquire into a possible devastavit of its funds.

United States v. Union P. R. Co. 98 U. S. 569, 25 L. ed. 143.

There is no peculiar or special right to regulate the present Union Pacific Railroad Company, owing to the Federal grant of corporate powers and franchises to its predecessor in title.

The possibility that the Commission may consider whether Congress should require all corporations engaging in interstate commerce to reincorporate or take out

a

license under Federal law does not warrant, Clark, 143 U. S. 649, 36 L. ed. 294, 12 an inquiry into transactions of individuals, Sup. Ct. Rep. 495; Buttfield v. Stranahan, or the relations between state corporations and their directors.